There is Only Parliament

   

This discussion, nominally about Bagehot, raises so many fundamental issues, and involves such complicated intertwinings of agreement and disagreement, that it is a little difficult to know how best to clarify the issues; and indeed I may well succeed only in muddying the waters. However it is clear that MacLeod and Frohnen want to appeal to some form of higher law, and they fault both Bagehot and modern politicians and legal systems for failing to acknowledge such a law. Stoner and, I think, Bagehot are primarily concerned to understand (in a way that Aristotle would have approved) how the British constitution actually worked, and whether it could in practice win the continuing support and approval of members of a political community which was rapidly expanding.

Let us turn from Bagehot to American constitutionalism, for I want to suggest that what we need now is an American Bagehot. Let me ask a simple question of MacLeod and Frohnen: Where is higher law in American constitutionalist thought? If we turn to the Federalist Papers what is surely remarkable is higher law's complete absence. The term "natural law", so important to MacLeod and Frohnen (it occurs 34 times in their texts, footnotes aside, once in Stoner, not at all in mine), does not occur a single time in the Federalist Papers (and "natural rights" occurs only once). It is fundamental to acknowledge that the classic defence of the constitution of the United States of America does not rest on invocations of a higher law.

It would seem evident to me (though perhaps not to my distinguished colleagues) that the authors of the constitution and its earliest defenders were not followers of Aristotle or Aquinas. Their intellectual heroes were Locke and Hume. Locke, as is well known, provides two contrasting approaches to law: the Two Treatises are in the natural law tradition; but the Essay insists that laws only exist where there are punishments and rewards, and that the good is to be identified with the pleasurable and the useful. At the heart of the argument of the Essay is the claim (if I may be permitted to restate it in postmodern terms) that the conscience is a social construct. The founders certainly invoked both Lockes; but there need be no doubt that it is the Locke of the Essay, the Locke of the pursuit of happiness, the Locke who leads to Humean utilitarianism, who is important for the Federalist Papers.

Another term that is important for MacLeod and Frohnen is "virtue." Since MacIntyre's After Virtue this has been a highly contested term. MacIntyre saw the Enlightenment as an assault on virtue ethics (correctly in my view), while more recent commentators have sought to read the British Enlightenment thinkers as propounding some form of virtue ethics (a view which one can only hold, I would argue, if one evacuates the term "virtue" of almost all meaning). If we turn again to the Federalist Papers we find a subtle and complex discussion of virtue, but the main concern is with acknowledging both that members of the government (of the legislature, the executive, and the judiciary) are capable of being virtuous, and that they are constantly liable to be corrupted. There is no discussion of the need for virtue in the citizenry in general, so that it is difficult to imagine them writing (as Frohnen does) "constitutional republicanism requires virtue. Only a people capable of self-restraint will hold governors to constitutional forms at the cost of satisfying their wants-of-the-moment." This is not their language. They never talk about "self-restraint." MacLeod and Frohnen want (unless I misunderstand them) to claim the American constitution for the intellectual tradition(s) to which they belong; but it comes out of a quite different, after virtue, Enlightenment world.

A second issue is what we are to make of the British constitution. MacLeod is quite right: parliamentary sovereignty is a new doctrine, or rather (we might say) it now means something quite different from what it used to mean. The supremacy of King, Lords, and Commons, and hence of statute law (a supremacy that goes back at least to Henry VIII and the Reformation), has now been replaced by the supremacy of a democratically-elected Commons alone. Bagehot saw this happening before his eyes. And MacLeod is also quite right to insist that referenda are a constitutional innovation which bring with them new conflicts and contradictions in the British political system. But, to be Bagehotian about the British constitution, it is a simple matter of fact that nothing can be done without the Commons and nothing can be done against the Commons. This was all too apparent in the case of the Brexit referendum, where the decision of the people could not be implemented until they had chosen a Commons prepared to implement it.

At certain points I think MacLeod and Frohnen misunderstand what I was trying to say in my original contribution. I said that for historians the rule of law may be seen as merely some "set of local practices and arbitrary conventions." And I would add that the British constitution has to be understood as merely a set of local practices and arbitrary conventions. Of course there are other "proper" ways of thinking about the rule of law and about constitutions, and even about the British constitution; but those other proper ways lie outside the professional preoccupations of British historians and, indeed, of British courts. British courts recognize no higher law than Magna Carta and the Bill of Rights.

MacLeod asks an important question when he asks: "if the law is simply Parliament's will, why does Parliament need an external institution to tell it what the law is?" The answer, of course, is that it doesn't. The law is what Parliament (observing the proper formalities) declares it to be. According to the Bill of Rights the proceedings of Parliament cannot be questioned in a court of law, and so the law is simply whatever Parliament says it is. Indeed Parliament alone determines how the law is debated, decided, and promulgated. The Supreme Court, in its judgement of 24 September 2019, ruled that prorogation itself is not a proceeding of Parliament, and that therefore the issue of whether prorogation was lawful was justiciable. This was a novel (in my view profoundly mistaken) view; but it did not dispute the supremacy of Parliament. If Parliament disagrees with the Supreme Court it can change the law or indeed simply deprive the Court of the power to rule on such matters. It could also, indeed, find the Court in contempt of Parliament, a judicial finding which cannot be appealed. Traditionally, of course, Parliament is not simply the legislature, it is also the highest court in the land. There is no separation of legislature, executive, and judiciary known to the British constitution, except in so far as one is established by the Constitutional Reform Act of 2005, a very recent and revisable innovation. (We might note that what impressed Montequieu was not the independence of judges but of juries.)

The Supreme Court was established in 2009 by removing from one branch of Parliament (or one part of one branch — the Lords of Appeal in Ordinary) its traditional role as the highest court. This was a constitutional innovation and a problematic one, as it created new possibilities for tensions between Parliament and the Courts. The newly elected government has resolved to address this issue and the developing practice of judicial legislation. The Conservative Party 2019 election manifesto stated: "We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy and Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates." And on 13 February a new Attorney General was appointed to see through this policy of ensuring that judicial review is not abused to conduct politics by another means. In any prolonged conflict between the courts and Parliament in the United Kingdom there can be only one eventual winner, no matter how much inconvenience and embarrassment the legislature may suffer in the short term. As with Brexit, the issue may be complicated by international treaty obligations, but none of these will withstand Parliamentary legislation.

Now of course one can, if one likes, look back behind the present British constitution, behind even the constitution of Bagehot's time, and claim to find a period in which quite different principles were promulgated, a period in which a higher law was acknowledged and respected. And certainly, if by a higher law one means papal authority, then one can find ample evidence of its being acknowledged. If one means an unwritten, traditional "common law", then the simple answer is that Coke and other advocates of the common law never represented an undisputed claim to authority. James VI and I was every bit as keen on the rights of sovereigns as was Hobbes. Hume, when he set out to write his History of England, which he wrote backwards, thought that as he went on he would find evidence of an ancient constitution. What he found instead was Tudor despotism.

I have gone on long enough. I am too much of a Lockean and a Humean to find appeals to a higher law convincing. All such appeals, to be given content, have to be restated in terms of pleasure and utility, or become in the end a sort of existential choice. I admire courage greatly, for example, but I know of no law which can require it. Bagehot, in focusing narrowly on the practical workings of the constitution at a time of rapid change, was doing an important job. Since we began this debate a President of the United States has been impeached and Britain has left the European Union. No one knows what the immediate future holds, and no one can know because we make the future by our own choices. Bagehot thought the British constitution would endure, and, roughly speaking, he was right. Will the American constitution survive its present crisis? It turns out that it depends, much more than we realised, on deference and on respect for tradition. Take those away, and only parchment barriers remain.